Ruto's probe team into Shakahola massacre illegal, court declares

Shakahola cult leader Paul Makenzi. [File, Standard]

The High Court has declared, as unconstitutional, the commission of inquiry President William Ruto appointed to investigate the Shakahola massacre.

Justice Lawrence Mugambi, on Thursday, quashed Gazette Notice No.5660 of May 4, 2023, by Ruto after finding it illegal, null, and void.

While declaring the Shakahola Commission unconstitutional, the judge stated that by establishing it, Ruto undermined the independence of the commissions and offices established by the Constitution.

"The President’s action in establishing a Commission of Inquiry and assigning it the parallel mandate to those assigned by the Constitution to Independent Offices and Commissions and various legislation undermines their powers and authority and is thus unconstitutional."

In his judgment, Justice Mugambi also found Section 3 of the Commission of Inquiry Act that allows the President unrestricted discretion to appoint a judge and assigning tasks to such a judge in the executive branch does not align with the constitutional principle of separation of powers and is, therefore, a threat to the independence of the Judiciary.

"To that extent, Section 3 of the Commission of Inquiry Act is unconstitutional," the judge held after a ruling that dealt a major blow to President Ruto in his attempt to explain to the country how close to 500 people were massacred almost undetected.

Last year, Azimio leader Raila Odinga filed the case arguing it was unconstitutional for Ruto to appoint Justice Jessie Lessit-led the commission to look into the Shakaola matter.

The leadership of the Azimo One Kenya coalition accused Ruto of usurping the powers of, among others, the Director of Public Prosecutions, the Judiciary, and the Parliament, installing the team.

Raila sought orders from the court declaring the Lessit Commission unconstitutional for infringing on the mandate of the DPP, Independent Policing Oversight Authority, Inspector General and Kenya National Human Rights Commission.

Through lawyer Paul Mwangi, the coalition informed the court that the decision to form the commission violated the Constitution.

Mwangi argued that Ruto hijacked the criminal justice system without any powers allowing him to do so.

According to Azimio, it is illegal for the president to appoint judges without reference to the Chief Justice. Raila argued that Lessit's inquiry was doing what the courts would do as the same could be done in an inquest.

Head of Public Service Felix Kosgei  had sworn an affidavit in court before the appointment of the Lessit team saying the President consulted with the Chief Justice.

But Justice Mugambi said Section 3 of the Commission of Inquiry Act does not what Ruto had done.

The commission had been mandated to unearth the truth behind the activities of Good News International Church, led by controversial preacher Paul Makenzi accused of being behind the massacre.

Those who died in the Shakahola massacre in Kilifi County are said to be members of Makenzi's church, who starved themselves to death in the name of Christian fasting. Some of the victims, who survived the seemingly forced fasting are said to have been clobbered to death.

The team was also to inquire into the factors that led to the rise of that particular religious extremist institution and other formations that foster negative religion-based activities.

“The mandate of the Commission of Inquiry shall be to inquire into the matter of the deaths, torture, inhumane and degrading treatment of members and other persons linked to the Good News International Church in Kilifi County,” Ruto's Gazette notice.